It is a long-established rule in the Scottish legal system that the Crown has an obligation to give the accused notice of the case against him, that is, to tell him what charges he faces and what is the evidence which the Crown intends to bring to prove the charges. Disclosure has the additional purpose of ensuring that any exculpatory material is identified and made available to the defence.
At least since the decision in Smith v HMA [1952] JC 66, it has been clear that the prosecuting authorities, including both the police and the Crown, have the initial information about potential criminal proceedings and vastly greater resources to investigate than does the defence and that they are under some corresponding obligation to disclose what they know in order to secure a fair trial.
What is needed is a firm statement of principle or rule which can, in the first instance, provide police and prosecutors with a proper basis of judgement. From the authorities canvassed above [in the full report], it is possible to draw several candidates for that principle:
Edwards: "All material evidence for or against the accused" (remembering that at another point the court identified the defect as being that "relevant" evidence was withheld).
The old English rule: "All material matters which affect the case relied on by the prosecution, whether they could strengthen or weaken the prosecution case or assist the defence case."
Any prosecution material… which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused."
Australian guidelines: "Any material which might be relevant to guilt or innocence of the defendant."
Stinchcombe: "All material evidence whether favourable to the accused or not." "All evidence which may assist the accused even if the Crown does not propose to adduce it."
McLeod: "All material evidence for or against the accused… information which would tend to exculpate the accused"
Sinclair: "All material evidence… any evidence which would tend to undermine the prosecution's case or assist the case for the defence is to be taken to be material" (Hope).
There should be a statutory definition of the duty of disclosure which should provide that, with a view to implementing the requirement of fair trials in criminal matters, the duty of the prosecutor in both solemn and summary cases is to disclose to the defence all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it.
